SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR14-AP18

DATE: 2015/07/03

RE: R. v. Barry MacIntosh

BEFORE: Valin J.

COUNSEL:
Natalie Boivin, for the Appellant

Erin Lainevool, for the Respondent

HEARD: June 25, 2015

ENDORSEMENT

[1] The respondent is a police officer employed by the North Bay Police Service. He was charged with four counts of assault, two counts of assault causing bodily harm, and two counts of criminal harassment involving three different women. The Crown proceeded summarily. Following a lengthy trial in the Ontario Court of Justice, the trial judge found the respondent not guilty on all counts.

[2] In dismissing Count 1, assault on Sherry Lynn Daniells, and Count 6, assault on Erin Villeneuve, the trial judge found that there was some touching of the complainants by the respondent, but the respondent had “no intent to assault” and that, in any event, the principle of de minimis non curat lex applied.

[3] This is an appeal from the decision of the trial judge on those two Counts.

[4] Since this is a Crown appeal from acquittal, s. 676(1) (a) of the Criminal Code permits this court only to consider errors of law.

[5] Counsel for the appellant Crown argued that the trial judge erred in law when he:

(a) configured the offence of assault as requiring a specific intent “to assault”, when the Criminal Code requires no such mental state; and

(b) applied the de minimis principle in this case.

[6] Counsel for the respondent argued that the trial judge dismissed all the charges against her client after engaging in a very thorough consideration of all the evidence in the trial in the framework of the analysis required by the seminal decision of the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. She submitted that the trial judge, having applied the correct analysis and having concluded he was not convinced of the guilt of the respondent beyond a reasonable doubt, came to the correct decision and committed no reversible error in law upon which an appellate court could intervene.

[7] In my opinion, the trial judge delivered very thorough reasons for judgement in which he reviewed in considerable detail the evidence of each witness. His judgment clearly states his concerns about the credibility of many of the witnesses and the reliability of their testimony. If, after considering all of the evidence, he found that the Crown had failed to prove the guilt of the respondent beyond a reasonable doubt, there would likely have been no reversible error in this case.

[8] However, I cannot disregard the trial judge’s comments about the requisite intent for the offence of assault and the applicability of the de minimis principle.

[9] Section 265(1)(a) of the Criminal Code defines assault as the intentional direct or indirect application of force to a person without his or her consent. Force includes any physical contact with another person, whether violent or gentle.

[10] For there to be an assault, the person must apply force intentionally and against the victim’s will. The word “intentionally” refers to the person’s state of mind when he/she applies the force. It means “on purpose”. Therefore, an accidental touching is not an intentional application of force.

[11] The incidents relating to the two Counts under appeal both occurred at the Zoo, a popular licenced drinking establishment in North Bay. On both occasions, the respondent was on duty and attended at the bar in uniform.

[12] Having regard to the offence alleged in Count 1, Sherry Lynn Daniells had been involved in a relationship with the respondent on and off over a period of seven to eight years. She testified that the respondent attended at the bar in uniform, called her a “fucking whore”, and grabbed her by the hair from behind to escort her out of the bar. Shawna Kosier testified that she saw the respondent pull Ms. Daniells out of the bar. She said the respondent had Ms. Daniells by the clothes or hair. The respondent testified that he had no recollection of that incident.

[13] At para. 379 of his reasons for judgment, the trial judge said:

Given the evidence of Ms. Daniells and Ms. Kosier and the inability of the accused recall the event, this court is satisfied that an incident of some sort did take place on the night in question. That said, however, the categorization of the touching as an intended assault has not in this court’s view been established beyond a reasonable doubt. The circumstances as outlined by Ms. Daniells was more likely than not, a desire on the part of the accused to gain the undivided attention of Ms. Daniells by taking her aside in order to express his displeasure more privately.

[14] Having regard to the offence alleged in Count 6, Erin Villeneuve had been involved in a relationship with the respondent on and off over a period of four or five years. She testified that on the occasion giving rise to the charge, she was at the Zoo dancing with her girlfriend Ashley Thompson and a man. She stated that the respondent grabbed her by the shirt and pulled her out of the bar. The respondent admitted that he spoke to Ms. Villeneuve in the bar, but denied having any physical contact with her or leading her away to speak to her somewhere else.

[15] At para. 392 of his reasons for judgment, the trial judge said:

The circumstances surrounding the alleged commission of this offence are similar to the alleged assault of Ms. Daniells earlier dealt with in these reasons. In this case, however, the accused admits having approached Ms. Villeneuve in the bar but demes having touched her. His evidence is contradicted both by Ms. Villeneuve, and Ms. Thompson. This court is satisfied on the evidence taken as a whole that the accused did touch Ms. Villeneuve. It is the characterization of the touching that is at issue. While Ms. Villeneuve testified that the accused pulled her by the shirt out of the bar on to the road, she also went on to say that he placed his hand on the side of her left shoulder over her shirt. Not wanting to cause a scene, she said, “I just wanted to go with it so I didn’t look like a bad person”. That evidence, together with the evidence of Ms. Thompson that she recalled the accused taking Ms. Villeneuve “aside by the arm” is suggestive of the conclusion that the accused was attempting to gain Ms. Villeneuve’s undivided attention, as opposed to having an intention to assault her. This court concludes that on the evidence there is a reasonable doubt as to the guilt of the accused.

[16] The force required for an assault may be no more than a touching of the person of the complainant in circumstances which interfere with the bodily integrity of the complainant. In the context of the definition of “assault”, force does not connote some minimum level of violence or any animus towards the complainant by the perpetrator. A friendly but unwanted kiss may be an assault: see R. v. A.Z. (2000), 2000 16976 (ON CA), 137 O.A.C. 385 (C.A.), at para. 6.

[17] Counsel for the appellant argued that the trial judge’s findings that there was “a desire on the part of the accused to gain the undivided attention of Ms. Daniells by taking her aside in order to express his displeasure more privately” and “the accused was attempting to gain Ms. Villeneuve’s undivided attention” imply but disregard the obvious underlying conclusion that the respondent applied force to the two complainants without their consent.

[18] I agree. I find that the trial judge erred in law when he ignored the defined mental element for the offence of assault, which is the intentional application of force to a person without that person’s consent, as set out in s. 265(1)(a) of the Criminal Code and replaced it by defining the mental element necessary to establish an assault in terms of the respondent’s motive, i.e. a specific intent to assault.

[19] With respect to his decision relating to Counts 1 and 6, the trial judge relied alternatively on the principle of de minimis non curat lex, meaning the law does not concern itself with trifles.

[20] In this case, the trial judge appears to have rationalized the respondent’s actions towards the complainants because of the existence of a relationship the respondent had with each of them. At para. 380 of his reasons for judgment, he stated:

Even if this court is wrong in its assessment, the touching of Ms. Daniells by the accused is of such trivial import that the principle of de minimis non curat lex as earlier set out in these reasons would be applicable. To visit a finding of guilt to a criminal act upon this accused in these circumstances would be disproportionate to the act complained of and of no public interest.

Again, at para. 392, dealing with Count 6 (Ms. Villeneuve), the trial judge stated:

This court concludes that on the evidence there is a reasonable doubt as to the guilt of the accused. Even if the conclusion of this court is incorrect, the doctrine of de minimis non curat lex would be equally applicable to this count. Accordingly count 6 is dismissed.

[21] In R. v. Kubassek (2004), 2004 7571 (ON CA), 188 C.C.C. (3d) 307 (Ont. C.A.), the accused attended at a church to object to same sex marriage. She pushed the minister, who did not fall and was not injured. She was charged with assault. The trial judge dismissed the charge on the basis of the de minimis principle. Without deciding whether the principle could be used as a defence in criminal proceedings, the Ontario Court of Appeal ruled that the principle was not available in the circumstances of the case before it. The Court of Appeal held that the push was an intentional act, and the fact that no injury resulted was fortuitous.

[22] Counsel for the appellant invited me to follow the reasoning in the decision of the Quebec Court of Appeal in Gosselin c. R., 2012 QCCA 1874, 98 C.R. (6th) 211, where the accused was found to have been holding his girlfriend by the waist as she struggled to get away from him. The Court of Appeal held that, in the domestic context, the act of the accused was not trivial. The actions of the accused would not be acceptable if they were done to a stranger. The court held that applying the de minimis principle would lead to the absurd result that the existence of a relationship renders absence of consent inconsequential.

[23] Although they do not constitute binding authority on this court, counsel for the respondent urged me to follow the reasoning in two decisions of the Ontario Court of Justice involving assault charges where the de minimis principle was adopted as a defence in criminal proceedings to alleviate from trivial or unintended violations: see R. v. Juneja, 2009 ONCJ 572, [2009] O.J. No. 5119; and R. v. Ferreira, 2014 ONCJ 21, [2014] O.J. No. 189.

[24] I prefer the reasoning of the Quebec Court of Appeal in Gosselin. In this case, both complainants were in a place where they were lawfully entitled to be. They were entitled to withhold their consent to the physical touching the respondent engaged in with them. He was in a visible position of authority, an on duty police officer in uniform in a public bar. He had been in a relationship with both complainants. Those facts weigh against the adoption of the de minimis principle, not in favour of it.

[25] Indeed, in Ferreira, ODonnell J. acknowledged in a footnote to para. 27 of his decision that: “[i]n general terms, the potential ambit of the de minimis principle in domestic assault cases may diverge from its availability in other contexts.” [Emphasis in original.]

[26] I conclude that the trial judge committed an error in law when, in the alternative, he relied on the de minimis principle to find the respondent not guilty on Counts 1 and 6.

[27] Pursuant to s. 686(4) of the Criminal Code, the appeal is allowed. Following a thorough review of the evidence, the trial judge made findings that he was not convinced of the guilt of the respondent beyond a reasonable doubt. In circumstances where it cannot be said that the verdicts would have been different without the errors in law I have found, this is not an appropriate case to substitute verdicts of guilty on Counts 1 and 6 in the information. The acquittals on those counts are set aside. A new trial is ordered on those counts before a different trial judge.

The Honourable Mr. Justice G. Valin

Date Released: July 3, 2015